Amendment to Employment Agreement
Between the WellCare Management Group, Inc. (Company)
And Xxxx X. Xxx (Employee) Dated June 1, 1996 (Employment Agreement)
WHEREAS this Amendment to said Employment Agreement is hereby made this 1st day
of June 1998;
WHEREAS all paragraphs of said Employment Agreement not amended herein are
hereby reaffirmed;
WHEREAS as of June 1, 1998 said Employment Agreement is hereby amended as
follows:
Replace paragraph 2.1 of the Employment Agreement in its entirety with the
following:
2.1 During the Employment Period, the Employee shall serve in the capacity of
and hold the title of Executive Vice President of WellCare Management Group,
Inc., and shall be subject to the supervision of, and shall have such authority
as is delegated to him by the Chairman of the Board of Directors of the Company
(the "Board") or the Chief Executive Officer of the Company (the "CEO")
consistent with such position; provided, however, that WellCare reserves the
right to change the Employee's title at any time if WellCare, in its sole
discretion, deems it appropriate based upon the nature of services provided by
the Employee to WellCare. The Employee hereby accepts such employment and agrees
to undertake the duties and responsibilities normally inherent in such position
and such other duties and responsibilities as the Board or the CEO shall from
time to time reasonably assign to him consistent with such position. Employee
agrees to serve on the Board during the Employment Period, provided that he is
proposed and elected. Employee is not required to be based in New York during
the Employment Period.
Replace paragraph 2.2 of the Employment Agreement in its entirety with the
following:
2.2 Employee agrees to be available to the Chairman of the Board and the CEO and
to devote his business time and attention to the discharge of his duties and
responsibilities hereunder for 75% of the normal work time for the period from
June 1, 1998 through May 31, 1999; 50% of the normal work time for the period
from June 1, 1999 through May 31, 2000; and 25% of the normal work time for the
period from June 1, 2000 through May 31, 2001. The Employee agrees to abide by
the reasonable rules, regulations, instructions, personnel practices and
policies of the Company, and any reasonable changes therein which may be adopted
from time to time by the Company, as such rules, regulations, instructions,
personnel practices and policies may reasonably be applied to employees of the
Company.
Replace paragraph 3.1 of the Employment Agreement in its entirety with the
following:
3.1(a) Salary. The Company shall pay the Employee, in installments consistent
with the Company's usual payroll practices, an annual salary of $220,000, less
applicable deductions, for the period from June 1, 1998 through May 31, 1999; an
annual salary of $200,000, less applicable deductions, for the period from June
1, 1999 through May 31, 2000; and an annual
salary of $197,723, less applicable deductions, for the period from June 1, 2000
through May 31, 2001.
Insert the following paragraph in its entirety as paragraph 3.1(b) of the
Employment Agreement:
3.1(b) Pursuant to the Release Agreement prepared by the Company and attached
hereto as Exhibit A, the Employee will receive a single lump sum payment of
$75,000, less applicable deductions, on or about the fifteenth business day
after the Employee executes this Amendment and executes and does not revoke the
Release Agreement as provided for therein.
Delete paragraph 3.3 of the Employment Agreement in its entirety.
Replace paragraph 3.4 (a) of the Employment Agreement in its entirety with the
following:
3.4 (a) Except as set forth below, as of the Effective Date and during
the Employment Period, the Employee shall be entitled to participate in the
benefit programs available to employees in senior management positions at the
Company (the "Executive Benefit Plans") from time to time in a manner and amount
consistent with the Company's employment policies in effect from time to time.
Such Executive Benefit Plans are listed on Schedule 3.4. The Employee shall be
entitled to participate in, and receive the benefits of, any Executive Benefit
Plan as of the Effective Date, and shall not be subject to any eligibility or
waiting periods with respect thereto unless otherwise indicated on Schedule 3.4.
If the Employee resides outside the service area of the health insurance plan
described on Schedule 3.4, the Company shall reimburse the Employee the cost of
alternative health insurance coverage that the Employee obtains, up to the cost
of the health insurance set forth on Schedule 3.4. Notwithstanding anything to
the contrary in this Employment Agreement, effective June 1, 1998, the Employee
shall not be eligible for a Company car beyond the current car lease which
expires on September 27, 1998, a car allowance or the use of a Company
apartment.
Replace paragraph 3.5 of the Employment Agreement in its entirety with the
following:
3.5 Reimbursement of Expenses. The Company shall reimburse the Employee
for all reasonable travel expenses, including travel by Employee to Company
facilities to perform services under this Employment Agreement, and other
expenses incurred or paid by the Employee in connection with, or related to, the
business of the Company and the performance of his duties, responsibilities or
services under this Employment Agreement, in accordance with Company policy and
upon presentation by the Employee of documentation, expense statements, vouchers
and/or such other supporting information as the Company may reasonably request.
Replace paragraph 5.1 (a) of the Employment Agreement in its entirety with the
following:
(a) the Options granted pursuant to Section 3.2 shall terminate on the date of
termination of employment; and
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Replace paragraph 5.2(a) of the Employment Agreement in its entirety with the
following:
(a) the Options granted pursuant to Section 3.2 shall become immediately
exercisable in full on the date of notice of such termination, providing the
Employee the opportunity to exercise such Options in full on or prior to the
date of termination of employment;
Delete paragraph 5.2(b) of the Employment Agreement in its entirety.
Replace paragraph 5.2(c) of the Employment Agreement with the following:
(c) the Company shall pay to the Employee the salary otherwise payable to him
under Section 3 through the Expiration Date, subject, however to the following:
Replace paragraph 5.2(c)(i) of the Employment Agreement in its entirety with the
following:
(i) If a "Change in Control" as defined in Schedule 3.3(c), occurs within
three (3) months after said termination without cause, in lieu of any other
payments under this Section 5.2(c), the Company shall pay to the Employee,
within sixty (60) days thereafter, an amount equal to his salary for the number
of months remaining in this Agreement; and
Replace paragraph 5.2(c)(ii) of the Employment Agreement in its entirety with
the following:
(ii) In the event the Employee secures Alternative Employment, as defined
below, said payments shall cease as of the date the Alternative Employment
commences. For purposes of this Agreement, "Alternative Employment" shall mean
any provision of services to a health maintenance organization that is in
competition with WellCare in the States of Connecticut or New York.
Insert the following paragraph in its entirety as paragraph 5.2(e) of the
Employment Agreement:
(e) In order to receive any compensation or benefits under this Section 5.2,
Employee must sign a release agreement prepared by the Company at that time,
which release shall be substantially in the form annexed hereto as Exhibit B.
Replace paragraph 5.3(a) of the Employment Agreement in its entirety with the
following:
(a) the Options granted pursuant to Section 3.2 shall terminate on the date of
termination of employment; and
Replace paragraph 5.4 of the Employment Agreement in its entirety with the
following:
5.4 Termination for Death or Disability. In the event that the Employee's
employment is terminated by the Company pursuant to Section 4.4 by reason of
death or disability of the Employee:
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(a) the Employee or his legal representatives, in the case of the
Employee's disability, or his legal representatives, in the case of the
Employee's death, shall be entitled to exercise the options granted pursuant to
Section 3.2 within six (6) months of the date of termination, but only to the
extent exercisable at the date of termination and in no event after the
expiration date of these options;
(b) the Company shall pay, in the case of the Employee's death, to the
estate or designated beneficiaries of the Employee, or, in the case of the
Employee's disability, to his legal representatives, the salary and benefits to
which the employee would otherwise be entitled under Section 3 through the last
day of his actual employment; and
(c) in the event of Employee's death during the period from June 1,
1998 through May 31, 1999, the Company shall pay to Employee's estate or
designated beneficiaries a lump sum payment of $142,000, less applicable
deductions. In the event of Employee's death during the period from June 1, 1999
through May 31, 2000, the Company shall pay to Employee's estate or designated
beneficiaries a lump sum payment of $79,000, less applicable deductions. In the
event of Employee's death during the period from June 1, 2000 through May 31,
2001, the Company shall pay to Employee's estate or designated beneficiaries a
lump sum payment of $26,000, less applicable deductions; provided, however, that
in order to receive a payment pursuant to this Section 5.4(c) the Employee's
estate or designated beneficiaries must sign a release agreement prepared by the
Company at that time, which release shall be substantially in the form annexed
hereto as Exhibit B.
Delete paragraph 6.1(a) of the Employment Agreement in its entirety.
Insert the following paragraph in its entirety as paragraph 6.3 of the
Employment Agreement:
6.3 If the Employee violates this Section 6 or Section 7, as of the date of such
violation, any and all payments of compensation and benefits pursuant to Section
3 of this Agreement shall cease immediately and Company shall have no further
obligation hereunder, including but not limited to the Change of Control
provisions in Section 5 of this Agreement.
Replace paragraph 10(a) of the Employment Agreement in its entirety with the
following:
(a) if to the Company:
The WellCare Management Group, Inc.
XxxxXxxx/Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, President/Chief Executive Officer
Telecopier Number : (000) 000-0000
Replace paragraph 15.4 of the Employment Agreement in its entirety with the
following:
15.4 Binding Effect. Subject to the provisions of Section 15.1, all the terms
and provisions of this Employment Agreement shall be binding upon and inure to
the benefit of and be enforced by the Company and the Employee and the legal
representatives of the Employee and the respective
4
successors and assigns of the parties hereto. This Employment Agreement shall
not run to the benefit of or be enforceable by any person other than a party to
this Employment Agreement and, subject to the provisions of Section 15.1, the
successors, assigns and legal representatives.
Replace paragraph 15.5 of the Employment Agreement in its entirety with the
following:
15.5 Entire Agreement. This Employment Agreement, as amended by the Amendment
dated June 1, 1998, constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Employment Agreement, including that
certain letter from Employee to Xxx Xxxxx and Xx Xxxxxxx dated June 7, 1996.
-----------------------------------------
THE WELLCARE MANAGEMENT GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx, President/CEO
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxx, Xx., Chairman
EMPLOYEE
/s/ Xxxx X. Xxx, M.D.
---------------------------
Xxxx X.Xxx, M.D.
Exhibit A
RELEASE AGREEMENT
This memorandum sets forth the terms and conditions of the Release
Agreement ("Agreement") between Xxxx X. Xxx, on his own behalf and on behalf of
his heirs, executors, administrators, attorneys, successors and assigns
(hereinafter collectively referred to as the "Employee"), and The WellCare
Management Group, Inc., and its parent(s), branches, agencies, subsidiaries,
affiliates, related companies and divisions and their respective successors,
assigns, representatives, agents, officers, directors, shareholders, attorneys,
and employees, whether current or former (hereinafter collectively referred to
as "WellCare").
WHEREAS, the Employee and WellCare have agreed that the Employee's
employment with WellCare will continue according to the terms of the Amendment
to Employment Agreement between The WellCare Management Group, Inc. and Xxxx X.
Xxx dated June 1, 1996 (the "Amended Employment Agreement");
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and undertakings set forth herein, the Employee and WellCare agree as
follows:
1. The Amended Employment Agreement and all rights and obligations
of the Employee and WellCare thereunder shall be effective at 5:00 p.m. on the
seventh day after Employee executes this Agreement, provided that Employee does
not revoke this Agreement pursuant to paragraph 12 in which event the Amended
Employment Agreement shall be of no force or effect on either WellCare or
Employee.
2. As consideration for the Employee's release of any and all
claims against WellCare as set forth in paragraph 3 herein, WellCare agrees:
(a) to provide the Employee with a lump-sum payment of $75,000
less applicable deductions, on or about the fifteenth business day after the
Employee executes this Agreement and the Amended Employment Agreement and does
not revoke this Agreement pursuant to paragraph 12; and
(b) to execute the Amended Employment Agreement.
3. In exchange for the payment set forth in paragraph 2 above and
for other good and valuable consideration, the Employee hereby releases WellCare
from any and all liability for any claims against WellCare as of the date of his
execution of this Agreement, whether known or unknown to him, that may arise
under express or implied contract, federal, state or local statute, executive
order, law, ordinance, tort or other obligations arising out of public policy.
This release includes but is not limited to any claims for discrimination on the
basis of race, color, sex, national origin, religion, disability, age, marital
status and veteran status, including but not limited to any claims arising under
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Older Workers Benefit Protection Act of 1990, the Family and Medical Leave Act
of 1993, the Americans with Disabilities Act of 1990, the Fair Labor Standards
Act of 1938, the New York State Human Rights Law, and all claims for wages,
bonuses, monetary or equitable relief, or attorneys' fees. This Agreement does
not constitute any
admission by WellCare that it has violated any such law or legal obligation with
respect to any aspect of the Employee's employment.
4. The Employee represents, warrants and acknowledges that
WellCare owes him no wages, commissions, bonuses, sick pay, personal leave pay,
holiday pay, severance pay, vacation pay, tuition reimbursement, stock options,
auto allowance, 401(k) Plan benefits or other compensation or benefits or
payments or forms of remuneration of any kind or nature, other than that
specifically provided for in this Agreement and the Amended Employment
Agreement.
5. The Employee represents and agrees that: (a) he has not filed
or caused to be filed any lawsuits against WellCare in any court whatsoever; (b)
he has not filed or caused to be filed any charges or complaints against
WellCare with any municipal, state or federal agency charged with the
enforcement of any law; and (c) pursuant to and as a part of the Employee's
complete, total and irrevocable release and discharge of WellCare, the Employee
agrees, to the fullest extent permitted by law, not to file or cause to be filed
a charge, complaint, grievance or demand for arbitration in any forum, which
relates to any matter that involves WellCare and that occurred on or before the
date of the Employee's execution of this Agreement.
6. The Employee agrees not to disclose the terms, contents or
execution of this Agreement, the claims that have been or could have been raised
against WellCare as of the date of execution of this Agreement, and the facts
and circumstances underlying any such claims except in the following
circumstances:
a. The Employee may disclose the terms of this Agreement to his
immediate family, so long as such family member agrees to be bound by the
confidential nature of this Agreement;
b. The Employee may disclose the terms of this Agreement to (i)
his counsel, tax advisors, auditors or accountants, so long as such persons
agree in writing to be bound by the confidential nature of this Agreement, or
(ii) taxing authorities, if requested by such authorities and so long as they
are advised in writing of the confidential nature of this Agreement; and
c. Pursuant to the order of a court or governmental agency of
competent jurisdiction, or otherwise as may be required by law, or for purposes
of securing enforcement of the terms and conditions of this Agreement.
7. The terms, contents or execution of this Agreement, any claims
that have been or could have been raised against WellCare as of the date of
execution of this Agreement, and the facts and circumstances underlying any such
claims shall not be admissible in any litigation, arbitration or proceeding in
any forum for any purpose other than to secure enforcement of the terms and
conditions of this Agreement, except as required by law.
8. Employee agrees not to issue any communication, written or
otherwise, that disparages, criticizes or otherwise reflects adversely or
encourages any adverse action against WellCare, except if testifying truthfully
under oath pursuant to any lawful court order or subpoena or otherwise
responding to or providing disclosures required by law.
2
9. Upon service on the Employee, or anyone acting on his behalf,
of any subpoena, order, directive or other legal process requiring the Employee
to engage in conduct encompassed within paragraphs 6 or 8 of this Agreement, the
Employee or his attorney shall immediately notify Xxxx X. Xxxxxx, Esq., Xxxxxxx
Xxxxxx & Green, P.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxx X.
Xxxx, Chief Executive Officer of WellCare in writing within two business days of
such service.
10. Employee agrees that he will assist and cooperate with
WellCare in connection with the defense or prosecution of any claim that may be
made against or by WellCare, or in connection with any ongoing or future
investigation or dispute or claim of any kind involving WellCare, including any
proceeding before any arbitral, administrative, judicial, legislative, or other
body or agency, including testifying in any proceeding to the extent such
claims, investigations or proceedings relate to services performed or required
to be performed by Employee, pertinent knowledge possessed by Employee, or any
act or omission by Employee. Employee further agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this paragraph.
11. WellCare shall, to the maximum extent permitted, indemnify
Employee pursuant to the Certificate of Incorporation and the Bylaws of The
WellCare Management Group, Inc. and WellCare of New York, Inc.
12. The failure of the Employee or WellCare to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver thereof, or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
13. The Employee acknowledges that he has been offered twenty-one
(21) days from the date he received this Agreement within which to consider its
terms, and that he has been advised that during such period he should consult an
attorney regarding the terms of this Agreement. The Employee further
acknowledges that his signature below indicates that he is entering into this
Agreement freely, knowingly and voluntarily with a full understanding of its
terms. The terms of this Agreement shall not become effective or enforceable
until seven (7) days following the date of the Employee's execution of this
Agreement, during which time the Employee may revoke this Agreement by notifying
WellCare in writing, by registered letter delivered to the attention of the
undersigned representative of WellCare. Any such revocation must be received by
5:00 p.m. on or before the seventh day.
14. This Agreement together with the Amended Employment Agreement
constitute the entire agreement between the Employee and WellCare, and supersede
and cancel all prior oral and written agreements, if any, between the Employee
and WellCare. Employee affirms that, in entering into this Agreement, Employee
is not relying upon any oral or written promise or statement made by anyone at
any time on behalf of WellCare.
3
15. If any of the provisions, terms or clauses of this Agreement
are declared illegal, unenforceable or ineffective in a legal forum, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties; provided, however, if the Employee's release of WellCare as
contained in paragraph 3 of this Agreement is declared by a court of competent
jurisdiction to be illegal, unenforceable or ineffective, WellCare shall rewrite
paragraph 3 to cure the defect and the Employee shall re-execute the release
upon request and the Employee shall not be entitled to any additional monies,
benefits and/or compensation therefor.
16. The Employee agrees that in the event he breaches the terms of
this Agreement, WellCare may immediately cease all payments pursuant to this
Agreement and the Amended Employment Agreement, and WellCare shall be entitled
to recover from the Employee all amounts paid to the Employee pursuant to this
Agreement and the Amended Employment Agreement, as well as all costs and
reasonable attorneys' fees incurred as a result of WellCare's attempt to redress
such breach or to enforce WellCare's rights and protect WellCare's legitimate
interests.
17. The law of the State of New York will control any questions
concerning the validity and interpretation of this Agreement, without regard to
principles of conflicts of law. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the applicable rules then obtaining of the American
Arbitration Association and judgment on the award rendered may be entered in any
court having jurisdiction thereof. The prevailing party in any such proceeding
shall be entitled to reimbursement of its costs and expenses (including
reasonable attorneys' fees) in connection with such proceedings.
18. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, assigns, heirs, executors and
legal representatives.
4
19. This Agreement may not be changed or altered, except by a
writing signed by the Employee and an authorized officer of WellCare.
/s/ Xxxx X. Xxx
------------------------------
Xxxx X. Xxx
STATE OF DISTRICT OF COLUMBIA )
) ss.:
CITY OF WASHINGTON, D.C. )
On this 11 day of July, 1998, before me personally came Xxxx X.
Xxx, to me known to be the individual described in the foregoing instrument, who
executed the foregoing instrument in my presence, and who duly acknowledged to
me that he executed the same.
/s/ Xxxxx X. Xxxx
------------------------------
Notary Public
XXXXX X. XXXX
NOTARY PUBLIC
DISTRICT OF COLUMBIA
MY COMMISSION EXPIRES OCTOBER 31, 1998
THE WELLCARE MANAGEMENT
GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx, President/CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF ULSTER )
On this 15th day of July, 1998, before me personally came Xxxxxx
X. Xxxx, to me known, who being by me duly sworn, did depose and say that he is
President/CEO of The WellCare Management Group, Inc., the corporation described
in and which executed the foregoing instrument; that he is duly authorized to
execute said instrument on behalf of said corporation, and that he executed said
instrument pursuant to that authority.
/s/ Xxxxxxxx X. Xxxx
------------------------------
Notary Public
XXXXXXXX X. XXXX
Notary Public, State of New York
No. 4937485
Qualified in Ulster County
Commission Expires July 25, 1998
5
Exhibit A
RELEASE AGREEMENT
This memorandum sets forth the terms and conditions of the Release
Agreement ("Agreement") between Xxxx X. Xxx, on his own behalf and on behalf of
his heirs, executors, administrators, attorneys, successors and assigns
(hereinafter collectively referred to as the "Employee"), and The WellCare
Management Group, Inc., and its parent(s), branches, agencies, subsidiaries,
affiliates, related companies and divisions and their respective successors,
assigns, representatives, agents, officers, directors, shareholders, attorneys,
and employees, whether current or former (hereinafter collectively referred to
as "WellCare").
WHEREAS, the Employee and WellCare have agreed that the Employee's
employment with WellCare will continue according to the terms of the Amendment
to Employment Agreement between The WellCare Management Group, Inc. and Xxxx X.
Xxx dated June 1, 1996 (the "Amended Employment Agreement");
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and undertakings set forth herein, the Employee and WellCare agree as
follows:
1. The Amended Employment Agreement and all rights and obligations
of the Employee and WellCare thereunder shall be effective at 5:00 p.m. on the
seventh day after Employee executes this Agreement, provided that Employee does
not revoke this Agreement pursuant to paragraph 12 in which event the Amended
Employment Agreement shall be of no force or effect on either WellCare or
Employee.
2. As consideration for the Employee's release of any and all
claims against WellCare as set forth in paragraph 3 herein, WellCare agrees:
(a) to provide the Employee with a lump-sum payment of $75,000
less applicable deductions, on or about the fifteenth business day after the
Employee executes this Agreement and the Amended Employment Agreement and does
not revoke this Agreement pursuant to paragraph 12; and
(b) to execute the Amended Employment Agreement.
3. In exchange for the payment set forth in paragraph 2 above and
for other good and valuable consideration, the Employee hereby releases WellCare
from any and all liability for any claims against WellCare as of the date of his
execution of this Agreement, whether known or unknown to him, that may arise
under express or implied contract, federal, state or local statute, executive
order, law, ordinance, tort or other obligations arising out of public policy.
This release includes but is not limited to any claims for discrimination on the
basis of race, color, sex, national origin, religion, disability, age, marital
status and veteran status, including but not limited to any claims arising under
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Older Workers Benefit Protection Act of 1990, the Family and Medical Leave Act
of 1993, the Americans with Disabilities Act of 1990, the Fair Labor Standards
Act of 1938, the New York State Human Rights Law, and all claims for wages,
bonuses, monetary or equitable relief, or attorneys' fees. This Agreement does
not constitute any
admission by WellCare that it has violated any such law or legal obligation with
respect to any aspect of the Employee's employment.
4. The Employee represents, warrants and acknowledges that
WellCare owes him no wages, commissions, bonuses, sick pay, personal leave pay,
holiday pay, severance pay, vacation pay, tuition reimbursement, stock options,
auto allowance, 401(k) Plan benefits or other compensation or benefits or
payments or forms of remuneration of any kind or nature, other than that
specifically provided for in this Agreement and the Amended Employment
Agreement.
5. The Employee represents and agrees that: (a) he has not filed
or caused to be filed any lawsuits against WellCare in any court whatsoever; (b)
he has not filed or caused to be filed any charges or complaints against
WellCare with any municipal, state or federal agency charged with the
enforcement of any law; and (c) pursuant to and as a part of the Employee's
complete, total and irrevocable release and discharge of WellCare, the Employee
agrees, to the fullest extent permitted by law, not to file or cause to be filed
a charge, complaint, grievance or demand for arbitration in any forum, which
relates to any matter that involves WellCare and that occurred on or before the
date of the Employee's execution of this Agreement.
6. The Employee agrees not to disclose the terms, contents or
execution of this Agreement, the claims that have been or could have been raised
against WellCare as of the date of execution of this Agreement, and the facts
and circumstances underlying any such claims except in the following
circumstances:
a. The Employee may disclose the terms of this Agreement to his
immediate family, so long as such family member agrees to be bound by the
confidential nature of this Agreement;
b. The Employee may disclose the terms of this Agreement to (i)
his counsel, tax advisors, auditors or accountants, so long as such persons
agree in writing to be bound by the confidential nature of this Agreement, or
(ii) taxing authorities, if requested by such authorities and so long as they
are advised in writing of the confidential nature of this Agreement; and
c. Pursuant to the order of a court or governmental agency of
competent jurisdiction, or otherwise as may be required by law, or for purposes
of securing enforcement of the terms and conditions of this Agreement.
7. The terms, contents or execution of this Agreement, any claims
that have been or could have been raised against WellCare as of the date of
execution of this Agreement, and the facts and circumstances underlying any such
claims shall not be admissible in any litigation, arbitration or proceeding in
any forum for any purpose other than to secure enforcement of the terms and
conditions of this Agreement, except as required by law.
8. Employee agrees not to issue any communication, written or
otherwise, that disparages, criticizes or otherwise reflects adversely or
encourages any adverse action against WellCare, except if testifying truthfully
under oath pursuant to any lawful court order or subpoena or otherwise
responding to or providing disclosures required by law.
2
9. Upon service on the Employee, or anyone acting on his behalf,
of any subpoena, order, directive or other legal process requiring the Employee
to engage in conduct encompassed within paragraphs 6 or 8 of this Agreement, the
Employee or his attorney shall immediately notify Xxxx X. Xxxxxx, Esq., Xxxxxxx
Xxxxxx & Green, P.C., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxx X.
Xxxx, Chief Executive Officer of WellCare in writing within two business days of
such service.
10. Employee agrees that he will assist and cooperate with
WellCare in connection with the defense or prosecution of any claim that may be
made against or by WellCare, or in connection with any ongoing or future
investigation or dispute or claim of any kind involving WellCare, including any
proceeding before any arbitral, administrative, judicial, legislative, or other
body or agency, including testifying in any proceeding to the extent such
claims, investigations or proceedings relate to services performed or required
to be performed by Employee, pertinent knowledge possessed by Employee, or any
act or omission by Employee. Employee further agrees to perform all acts and
execute and deliver any documents that may be reasonably necessary to carry out
the provisions of this paragraph.
11. WellCare shall, to the maximum extent permitted, indemnify
Employee pursuant to the Certificate of Incorporation and the Bylaws of The
WellCare Management Group, Inc. and WellCare of New York, Inc.
12. The failure of the Employee or WellCare to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver thereof, or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
13. The Employee acknowledges that he has been offered twenty-one
(21) days from the date he received this Agreement within which to consider its
terms, and that he has been advised that during such period he should consult an
attorney regarding the terms of this Agreement. The Employee further
acknowledges that his signature below indicates that he is entering into this
Agreement freely, knowingly and voluntarily with a full understanding of its
terms. The terms of this Agreement shall not become effective or enforceable
until seven (7) days following the date of the Employee's execution of this
Agreement, during which time the Employee may revoke this Agreement by notifying
WellCare in writing, by registered letter delivered to the attention of the
undersigned representative of WellCare. Any such revocation must be received by
5:00 p.m. on or before the seventh day.
14. This Agreement together with the Amended Employment Agreement
constitute the entire agreement between the Employee and WellCare, and supersede
and cancel all prior oral and written agreements, if any, between the Employee
and WellCare. Employee affirms that, in entering into this Agreement, Employee
is not relying upon any oral or written promise or statement made by anyone at
any time on behalf of WellCare.
3
15. If any of the provisions, terms or clauses of this Agreement
are declared illegal, unenforceable or ineffective in a legal forum, those
provisions, terms and clauses shall be deemed severable, such that all other
provisions, terms and clauses of this Agreement shall remain valid and binding
upon both parties; provided, however, if the Employee's release of WellCare as
contained in paragraph 3 of this Agreement is declared by a court of competent
jurisdiction to be illegal, unenforceable or ineffective, WellCare shall rewrite
paragraph 3 to cure the defect and the Employee shall re-execute the release
upon request and the Employee shall not be entitled to any additional monies,
benefits and/or compensation therefor.
16. The Employee agrees that in the event he breaches the terms of
this Agreement, WellCare may immediately cease all payments pursuant to this
Agreement and the Amended Employment Agreement, and WellCare shall be entitled
to recover from the Employee all amounts paid to the Employee pursuant to this
Agreement and the Amended Employment Agreement, as well as all costs and
reasonable attorneys' fees incurred as a result of WellCare's attempt to redress
such breach or to enforce WellCare's rights and protect WellCare's legitimate
interests.
17. The law of the State of New York will control any questions
concerning the validity and interpretation of this Agreement, without regard to
principles of conflicts of law. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, shall be settled by arbitration
in accordance with the applicable rules then obtaining of the American
Arbitration Association and judgment on the award rendered may be entered in any
court having jurisdiction thereof. The prevailing party in any such proceeding
shall be entitled to reimbursement of its costs and expenses (including
reasonable attorneys' fees) in connection with such proceedings.
18. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, assigns, heirs, executors and
legal representatives.
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19. This Agreement may not be changed or altered, except by a
writing signed by the Employee and an authorized officer of WellCare.
/s/ Xxxx X. Xxx
------------------------------
Xxxx X. Xxx
STATE OF DISTRICT OF COLUMBIA )
) ss.:
CITY OF WASHINGTON, D.C. )
On this 11 day of July, 1998, before me personally came Xxxx X.
Xxx, to me known to be the individual described in the foregoing instrument, who
executed the foregoing instrument in my presence, and who duly acknowledged to
me that he executed the same.
/s/ Xxxxx X. Xxxx
------------------------------
Notary Public
XXXXX X. XXXX
NOTARY PUBLIC
DISTRICT OF COLUMBIA
MY COMMISSION EXPIRES OCTOBER 31, 1998
THE WELLCARE MANAGEMENT
GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx, President/CEO
STATE OF NEW YORK )
) ss.:
COUNTY OF ULSTER )
On this 15th day of July, 1998, before me personally came Xxxxxx
X. Xxxx, to me known, who being by me duly sworn, did depose and say that he is
President/CEO of The WellCare Management Group, Inc., the corporation described
in and which executed the foregoing instrument; that he is duly authorized to
execute said instrument on behalf of said corporation, and that he executed said
instrument pursuant to that authority.
/s/ Xxxxxxxx X. Xxxx
------------------------------
Notary Public
XXXXXXXX X. XXXX
Notary Public, State of New York
No. 4937485
Qualified in Ulster County
Commission Expires July 25, 1998
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